Lawyer: Portsmouth police made illegal DWI arrest

PORTSMOUTH — A city man was unlawfully arrested for driving while intoxicated after he was followed by an off-duty officer, then taken into protective custody without probable cause, according to Durham attorney Heath Norris.

PORTSMOUTH — A city man was unlawfully arrested for driving while intoxicated after he was followed by an off-duty officer, then taken into protective custody without probable cause, according to Durham attorney Heath Norris.

Representing Justin Bethel, 30, of 8 Lens Ave., Norris is asking a judge to dismiss all evidence against his client who, he claims, was illegally arrested by city officers who violated his state and federal constitutional rights.

According to court records, Bethel was arrested Feb. 26 at 9:47 p.m. on a misdemeanor alleging he was intoxicated while driving on Junkins Avenue. In a “motion to suppress based on unlawful arrest,” filed in the Portsmouth Circuit Court, Bethel's lawyer said off-duty officer William Dubois made the first contact with his client.

Norris wrote to the court that Dubois saw Bethel “allegedly make a wide turn onto Junkins Avenue from South Street” and followed him to Parrott Avenue where he saw Bethel “properly and legally park the car.” As Bethel got out of his car, his lawyer alleges, the off-duty officer pulled up next to him in his personal vehicle, wearing plain clothes and without identifying himself as a police officer, “yet began to question the driver.”

Norris wrote to the court that his client got out of his car and walked away from Dubois, “who still had not identified himself as an officer.”

“Dubois then drove his truck through the municipal lot in an attempt to follow the driver as he walked away,” the lawyer alleges.

The off-duty officer then exited his vehicle, followed Bethel on foot into Langdon House property on Pleasant Street, and yelled for him to stop while then identifying himself as an officer, the lawyer wrote. Norris said his client asked to see identification from “the plain-clothed male” who produced “an ID card and not a badge.”

Bethel claims his client never got closer than 30 feet to Dubois and ultimately walked away from him. Later, while sitting under a tree on the Langdon House property, Bethel was approached by a uniformed officer who took him into protective custody by handcuffing him, putting him in a cruiser and bringing him to the police station, the lawyer states.

There, Norris wrote, his client was identified by Dubois and arrested for driving while intoxicated.

“This is a clear case of the officer using 'protective custody' as a disguise to arrest Bethel for identification purposes,” Norris wrote in his motion. “This was simply an arrest for identification purposes which lacked probable cause.”

The arresting officer saw Bethel sitting under a tree “and that is it,” Norris wrote, while citing the state's protective custody law. That law, the Durham lawyer wrote, was written to allow officers to take intoxicated people into custody to ensure the safety of themselves and the public “rather than subject then to criminal prosecution for their consumption of alcoholic beverages.”

Norris' motion also cites police reports stating the officer took his client into protective custody “due to the odor of alcohol, bloodshot eyes and alleged trouble walking.”

Police Capt. Mike Schwartz said he wasn't famililar with the specifics of the case, but generally speaking said, “We wouldn't make any arrest without probable cause.” He said all officers take an oath to uphold public safety and “it doesn't matter if it's on or off-duty.”

A judge is scheduled to rule on the motion during a Tuesday hearing in the Portsmouth Circuit Court.